It Was Wrong to Preclude Plaintiff's Premises Security Expert

On behalf of Koskoff Koskoff & Bieder, PC on Friday, May 14, 2010.

Returning to the Supreme Court for the second time, that court held that the plaintiff's premises security expert should not have been precluded from testifying in this case involving railroad security. Sullivan v. Metro-North Commuter Railroad, 292 Conn. 150 (2009). The preclusion of the expert's testimony was harmful to the plaintiff's case because he was plaintiff's only witness to discuss the crucial issue of foreseeability - an issue that alone dictated the outcome of the case.

Facts:

On an evening in August of 1992, the plaintiff's decedent, James P. Sullivan, was shot and killed by Larone Hines in a stairway leading up from Monroe Street to the westbound platform of the South Norwalk train station.

Earlier that night, Sullivan was a passenger on one of the defendant's trains. He arrived at the station about 10:40 pm, went to a few bars and then had a brief encounter with Hines and a group of men outside a local nightclub.

The encounter became hostile, Sullivan walked away and Hines followed. Sullivan ran into the stairway, but Hines followed him and shot Sullivan there.

The South Norwalk train station is located in a relatively high crime area of Norwalk.

The state owns the stairway where the incident occurred.

The department of transportation has a service agreement with the Metropolitan Transportation Authority, the parent organization of the defendant for commuter rail service in Connecticut.

At trial, the plaintiff sought to introduce the testimony of John Kennish, a premises security expert, to testify as to the lack of security at the South Norwalk train station, as well as "those measures that the defendant could and should have taken to protect the public." The plaintiff also intended to have Kennish testify that the fatal attack of the decedent was foreseeable, given the overall lack of security at the train station in conjunction with the high crime rate in the surrounding area.

The trial court precluded Kennish's testimony on the ground that he was not qualified to render an opinion on railroad security because he was a premises security expert.

The plaintiff appealed and the Appellate Court affirmed the decision of the trial court.

The Supreme Court concluded that the Appellate Court improperly affirmed the trial court's preclusion of the plaintiff's expert witness, and that such preclusion was harmful.

Reasoning:

The test for the admission of expert testimony is as follows. Expert testimony should be admitted when: 1) the witness has a special skill or knowledge directly applicable to a matter in issue; 2) that skill or knowledge is not common to the average person; and, 3) the testimony would be helpful to the court or jury in considering the issues. In other words, in order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion. The true test of the admissibility of expert testimony is not whether the subject matter is common or uncommon, or whether many persons or few have some knowledge of the matter; but it is whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue. Implicit in this standard is the requirement that the expert's knowledge or experience must be directly applicable to the matter specifically in issue.

Once it decided that the plaintiff's expert should not have been precluded, the Supreme Court next had to determine if the error of the trial court was harmful. The harmless impropriety standard in a civil case is whether the improper ruling would likely affect the result. An evidentiary impropriety in a civil case is harmless only if the reviewing court has a fair assurance that it did not affect the jury's verdict. A determination of harm requires the court to evaluate the effect of the evidentiary impropriety in the context of the totality of the evidence adduced at trial. Thus, the court's analysis includes a review of: 1) the relationship of the improper evidence to the central issues in the case, particularly as highlighted by the parties' summations; 2) whether the trial court took any measures, such as corrective instructions, that might mitigate the effect of the evidentiary impropriety; and, 3) whether the improperly admitted evidence is merely cumulative of other validly admitted testimony. The overriding question is whether the trial court's improper ruling affected the jury's perception of the remaining evidence.

Because Kennish was plaintiff's only expert on the issue of foreseeability, a crucial issue in this case that alone dictated its outcome, the court found that it was harmful error for the trial court to have precluded his testimony.

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.